Tuesday, July 13, 2010

"Unfortunately People Go to Jail Now" - Not

From DIYmedia.net

Great info on how the FCC really works in regards to controlling Pirate Radio in America.


Chapter 2. Contemporary Treatment of Unlicensed Broadcasting


The FCC has never articulated a very specific policy with regard to unlicensed
broadcasting beyond a blanket commitment to enforce the law requiring a license. Since it is a
cardinal violation of the Communications Act the FCC tends to take such behavior relatively
seriously, punishing those offenders it can catch through a selection of enforcement tools at its
disposal. These range from administrative sanctions like fines to seizure and forfeiture of
equipment,1 injunctive relief, and criminal charges.2

An unlicensed broadcaster’s avenues to challenge these enforcement actions vary
depending on which method of enforcement is chosen by the FCC. The district courts have
jurisdiction to enforce the application of FCC enforcement orders,3 although the avenue of
challenge to FCC regulations begins at the courts of appeal.4 Appeals of enforcement orders that
are preceded by official cease and desist notices is limited to the D.C. Circuit only,5 as are cases
of unlicensed broadcasting which began with the filing of a license application or waiver.6 But
the FCC need not (and often does not) issue a cease and desist notice before moving forward
with an injunction, forfeiture or any other enforcement effort, and a pirate station need not
telegraph its intent before taking to the airwaves. This places the initiation of most court cases
involving unlicensed broadcasting in the domain of the district courts.

The FCC’s protocol for dealing with unlicensed broadcasting utilizes a system of
escalating punishment. Once field agents confirm the presence of an unauthorized radio signal
they will triangulate its location and attempt to make contact with the station operator. An
official Notice of Violation (NOV) is usually served first, either in person or via certified mail,
requiring a response to an FCC field office within 10 days. The FCC takes responses to a NOV
very seriously: if the respondent is truthful and forthright, takes responsibility for their
transgressions and offers adequate explanation and contrition, the FCC may reduce or waive the
penalty. Responses that gloss over or contradict the FCC’s initial findings, and non-responses, all
but guarantee further punishment.7

If an unlicensed broadcaster continues operations following the service of a warning
notice, the FCC may proceed in a variety of directions. If the infraction is serious enough the
agency can move quickly and decisively to take the station off the air. This involves securing a
warrant to seize the unlicensed transmitter and executing a station raid with the help of Federal
Marshals.8 In the majority of cases, however, the FCC proceeds along a more sedate course: a
Notice of Apparent Liability (NAL) is served on the station, threatening a monetary forfeiture
and requiring response within 30 days.9 Escalation continues with a Forfeiture Notice, requiring
payment of a fine within 30 days. If payment is not received, collection may be referred to the
Department of Justice for further civil proceedings.

Another enforcement option open to the FCC is the use of injunctions through the district
courts against broadcasters themselves; this may be exercised in lieu of or as supplement to the
forfeiture or seizure process, depending on the circumstances of a specific case. In extreme
cases, where all other enforcement tools have been exhausted without effect, the FCC can press
for criminal prosecution, again with the assistance of the Department of Justice. It is important toemphasize that the FCC may mix and match these enforcement tools to suit its needs; for
example, if an unlicensed broadcaster returns to the air with a replacement transmitter after a
seizure, the FCC may still pursue a forfeiture, seek an injunction, or institute criminal
proceedings, or any combination thereof.

Of all the enforcement tools at its disposal, the FCC is most likely to pursue monetary
forfeitures to force unlicensed radio stations off the air. Actually traveling to pirate radio stations
and seizing transmitters is a time and manpower-intensive effort that taps resources the FCC
does not have. Forfeitures have also recently gotten more severe: just a dozen years ago the
average fine for a first offense involving unlicensed broadcasting ranged between $750 and
$1,000;11 today the base fine begins at $10,000. However, the threat diminishes upon
demonstration of inability to pay, and the FCC regularly reduces or cancels fines when such
claims are made and proven.

Regardless of which tools are employed, the FCC’s enforcement process often stretches
out over the course of months or years from initial contact to final punishment. The agency
basically engages the unlicensed broadcaster in a long series of administrative correspondence
before any actual muscle is brought to bear to stop the violation itself. In some cases, this lengthy
enforcement process can afford unlicensed broadcasters the ability to muster community and
other support, empowering a defense of the station which can further extend not only the
enforcement process itself but the broadcaster’s overall time on the air. Of the several stations
that have engaged the FCC in the courts, most have managed to stay on the air until the issuance
of an injunction or other terminal judgment.

The instruments to ultimately enforce the FCC’s licensing authority reside outside the
FCC itself. It must resort to the Department of Justice to collect forfeitures and throw people in
jail, and it must persuade a district court judge to enjoin an unlicensed broadcaster. The DOJ’s
responsibilities to prosecute lawbreakers are vast but its time and resources are limited, and the
FCC is but one of several agencies that rely on the DOJ’s legal services. Pursuing injunctions
allows the FCC to keep the case under the control of its own counsel but they, too, have limited
means.

A. Real-World Constraints on FCC Enforcement

Not only is the FCC forced to rely on other agencies to provide its muscle, but its
resources in the field - those who identify and initiate enforcement cases - have never been very
strong on their own. Their lack of police powers limits their activities to observation and advice;
FCC field agents may suggest that a pirate go off the air, but unless they can bluff their way into
convincing the broadcaster to let them inspect and/or seize the transmitter, their initial contact
with an unlicensed radio station may have no effect at all.

Of the approximately 2,000 people directly employed by the FCC, about 315 are assigned
to the Enforcement Bureau.14 Over the course of the last ten years, at least one-third of the
Bureau’s staff has been based at the FCC’s headquarters in Washington, D.C.15 The
Enforcement Bureau itself comprises eight divisions, of which three are delegated to field
activity and divide the country into three regional jurisdictions. Within these three regions there
are a total of 25 field offices based in 19 states and Puerto Rico.16 As exact numbers are
unavailable, a crude division of labor based on the framework outlined above yields a coarse
average of four Enforcement Bureau field personnel for each state; this is more realistically
divided as eight employees per field office, concentrated among 19 states.

All field offices are not created equal. The FCC has three tiers of field presence: the
Regional, District, and Resident Agent office. Other Enforcement Bureau divisions may have
personnel based in field offices, but only certain qualified staff conduct field inspections. This
further limits the field inspection presence of each field office to a relative handful of agents; and
the smallest field outpost, the Resident Agent office, may only comprise one or two people to
begin with. It must be remembered that these people are responsible for enforcing the entire
gamut of FCC regulations, not just a prohibition on unlicensed broadcasting. Therefore, the
amount of time the FCC can actually devote to finding - much less prosecuting - unlicensed
broadcasting is quite small relative to other enforcement demands. As a result the FCC responds
to complaints about unlicensed broadcasters but does not actively hunt them down, unless the
violation is so high-profile as to not be safely ignored.

Much of the FCC’s organizational structure and sheer workload are often determined by
priorities outside its own purview. Partly a creature of politics, the FCC often focuses its
enforcement efforts on subjects in the news or on the minds of its prime constituents which, for
the most case, are the industries it regulates. This can lead to erratic enforcement with respect tounlicensed broadcasting. Ted Coopman, who interviewed several field employees of the FCC,
found that collective cognizance of pirate radio as an enforcement issue didn’t seem to exist in
the agency before 1995.19 Daniel Emrick, then chief of the agency’s enforcement arm, opined
that unlicensed broadcasting on the AM or FM bands was generally not worth prosecuting.20
Emrick’s attitude has some institutional precedent: six years previously, FCC officials claimed
they were “not at all concerned about sporadic pirates not causing actual harm” and viewed
instances of unlicensed broadcasting as individual aberrations.21 They differentiated the severity of the violation based on the band in which the broadcasts took place: shortwave was considered the most “dangerous” place to be a pirate because of the potential for interference with international broadcasters and military-band communications.22 Even so, enforcement efforts on the shortwave bands have been historically spotty at best, save for a major sweep in 1985 which involved 16 station raids in 12 states.

This trend changed in the 1990s as unlicensed FM broadcast activity increased
dramatically, inevitably bringing more cases to the attention of the FCC - but helpful nudges
from the broadcast industry certainly didn’t hurt. At its annual convention in 1998 the National
Association of Broadcasters held a panel discussion on pirate radio and organized a
neighborhood watch-style program whereby local broadcasters would scan their dials and report
unlicensed activity to the FCC.24 The result was remarkable: the number of documented
enforcement actions against unlicensed stations tripled that year,25 and the FCC was quite publicabout the crackdown and its catalyst.

Yet the FCC remains at the mercy of bureaucratic inertia. Perpetually understaffed and
underfunded, enforcement agents in the field have never been utilized to their maximum
potential. A 1978 report from the General Accounting Office examined the role of field agents in
the FCC and found that as new communications technologies have developed the agency’s
workload has increased, making for ever-busier field agents. There was also little centralized
direction or opportunity for feedback from the field about operational and regulatory
effectiveness.27 The GAO noted field personnel’s “austere” set of tools28 and summarized their
attitude toward their job as: “It is better to provide some enforcement service to more people thanto provide the best service to a limited number of people.”29 The report also noted that
enthusiasm within the ranks of U.S. Attorneys varied widely for pursuing communicationrelated cases, which led FCC field offices to tailor their enforcement activities based on the
receptiveness of their local DOJ colleagues.30 Not much has changed since 1978: as recently as
1999 FCC officials described the cooperation of U.S. Attorneys in enforcement cases as ranging
from “difficult to impossible.

This has significant impacts on the efficacy of the agency’s most favored enforcement
tool against unlicensed broadcasting - the monetary forfeiture. A report from FCC Inspector
General H. Walker Feaster III in 2000 analyzed the agency’s growing backlog of civil monetary
forfeiture cases and discovered successful collections on less than one-quarter of them, with
many going uncollected because the statute of limitations had lapsed. Feaster traced the problem
to a lack of coherent policy among the agency’s bureaus on matters involving forfeitures, as well
as institutional resistance from the Department of Justice to pursue such cases.32 Of those fines
turned over to the DOJ for collection, Barry Cole and Mal Oettinger found that most get settled
out of court for “about three-quarters” of the original amount; U.S. Attorneys do not like taking
chances with an FCC-inspired case in a “local court...unfamiliar with broadcasting regulation.”33
Informal audits of six field offices in 1999 found field agents hamstrung by 1970s-era
equipment and a lack of travel funds.34 Of those field offices that did get in on busting pirates,
“employees...spoke favorably of their experience and the constructive nature of the
work...However, such work appears to be the exception rather then the rule...”35 The resource and staffing problems appear to be getting worse for the Enforcement Bureau, which warned in 2002 that it could lose nearly half its field agents to retirement by 2006.

An overwhelming burden of responsibilities combined with inefficient organization, wide
latitude given to agents in the field, and the continued basic perception of pirate radio stations as
single-case short-term phenomena leaves the FCC with no overall grasp on the success of its
enforcement efforts against unlicensed broadcasting. This has become especially clear over the
last five years, during which Commissioners and high-level Enforcement Bureau staff have
spoken publicly on the issue of pirate radio. In a 1998 speech to the National Association of
Broadcasters’ Radio Convention, Chairman William Kennard claimed the agency shut down
more than 250 unlicensed radio stations: this was “more aggressive...than any FCC in history.”37
Two years later, the Enforcement Bureau reported silencing 180 unlicensed radio stations
between November 8, 1999 and November 7, 2000: “This is the highest number ever
achieved.”

The contradiction played itself out again in 2002, when Enforcement Bureau Deputy
Chief Linda Blair told Commissioners they had shut down 460 pirate stations in the last three
years when just three months prior the official tally was counted closer to 500.39 The truth may
never be known, because the FCC doesn’t appear to keep track, choosing instead to assert its
authority and frame its effectiveness with a degree of flexibility dependent on the political or
publicity conditions of the moment.

B. Engagement at the Administrative Level

In cases where an unlicensed broadcaster proffers formal challenge to the FCC, the courts
are more likely to discuss the merits of the challenge if the broadcaster has exhausted the
available administrative remedies, such as petitioning the reconsideration of an FCC order40 or
applying for a license waiver.41 The waiver option, however, is theoretical only, as the FCC
considers asking for a license waiver tantamount to asking for permission to broadcast without a
license.42 Failing to exhaust all available administrative appeals gives the courts a way to dismiss the case without having to fully consider its merits.

Finding documentation on cases of FCC enforcement is not an easy task, as the agency
can be quite selective about the information it releases. A limited number of cases involving
unlicensed broadcasting are archived in the FCC Record, FCC Reports, or Pike & Fischer’s
Radio (now Communications) Regulation. Further complicating matters, the tools used in
enforcement generate different sorts of paper trails. Cases involving forfeitures can usually be
traced to a published Notice of Apparent Liability and any petitions for reconsideration filed by
the unlicensed broadcaster. Station raids involving equipment seizures leave hardly any paper
trail at all, save the initial arrest warrant for the transmitter, which is not usually made public
unless the broadcaster challenges the action or the FCC issues a news release about the raid. As a
result, nearly all well-documented FCC administrative decisions involve forfeitures and/or
formal cease and desist orders, the latter usually related to a station raid or injunction effort. An
effect of the agency’s disorganization noted earlier is that its record keeping is generally
scattered and cumbersome to search, especially with cases that can stretch over several years.
The FCC’s problem with public information has been the subject of critical Congressional
inquiry, so this is not a problem unique to niche researchers.

To its credit, the FCC was an early adopter of the Internet among government agencies
and now makes a huge volume of data and records available through more than a dozen online
databases, some of them containing records dating as far back as 1996. However, these databases are also quite cumbersome to search, more properly designed for users who do daily business with the agency than for the casual inquisitor. They are also neither complete nor fully crossreferenced.

For the purposes of this section, our review of FCC administrative decisions is primarily
confined to cases within the last five to ten years. This is in part due to the difficulties of
document collection outlined above (the agency’s online databases provide a more thorough
record of the most recent cases). Additionally, the FCC has dealt with significantly more cases of
unlicensed broadcasting during this period of time than it has in any previous period. Since the
development of unlicensed broadcasting as an institutional issue for the FCC is also relatively
new, studying the cases during this period offers the chance to study the best-articulated
methodology yet developed by the agency for handling the pirate radio phenomenon.
In contrast to its actions in the field, the FCC’s administrative dispatch of unlicensed
broadcasting cases is relatively invariable. It follows very closely all statutorial guidelines for the
finding of fact and the determination of appropriate penalty. For the most part, once there are
findings of fact the momentum to carry the process through is sufficient enough to derail all
challenges except those involving mitigation of the pending punishment. Even more importantly,
there is no latitude given to any notion that the FCC’s licensing authority may be weakened or
invalid in particular cases; such rebuttals are either ignored or dismissed outright. It is actually a
rarity to find the FCC justifying itself in its administrative decisions. As the function of
administrative law is to expedite the function of regulation, the premise that the regulations are
valid is an obvious one.

The only instances where the FCC displays leniency are those where an unlicensed
broadcaster admits guilt and can demonstrate hardship to mitigate the punishment. There have
been several recent examples of this practice. Thomas Brothers, a college student in Berkley,
Michigan was fined $10,000 in June, 2002 for broadcasting on 88.3 MHz for several months
without a license.45 Brothers filed a petition for reconsideration admitting to the violation and
provided financial documentation proving his inability to pay the fine; by December the FCC
had rescinded it.46 Similarly, Jeffrey Alan Petrey of Princeton, West Virginia was threatened with a $10,000 fine on July 30, 2001 for broadcasting on the FM band without a license. Petrey
responded a week later with documentation regarding his inability to pay; the FCC canceled
proceedings in December.47 The Rev. Dr. Philius Nicholas received a $10,000 Notice of Apparent Liability in January, 2002 for operating an unlicensed FM radio station in Brooklyn, New York.

As the pastor of a small church, he explained he was trying to use the radio to evangelize; his
petition for reconsideration and three years’ worth of tax returns convinced the FCC to reduce
the fine to $1,000.49

The administrative decision process itself is usually so rigid beyond findings of fact that
arguments an unlicensed broadcaster might make in their own defense - whether thoughtful or
absurd - are swept aside with a sense of detachment. Variations in reasoning occur dependent on
how the enforcement process has played itself out to its present point (for example, whether
initial contacts between the station operator and field agents were cordial or confrontational), but
the operative reasoning behind all decisions boils down to: rules exist, they were broken, and
now a price must be paid. Edwin Valentin’s $5,000 fine serves as a good illustration: initially
visited in 1997 by field agents for operating “Musical Radio” in Detroit, Michigan, Valentin
responded to initial contact with constitutional questions about the FCC licensing scheme - not
with any particular argument other than that the need for a license interfered with his perceived
free speech rights. The FCC quickly rejected the challenge out of hand, noting Valentin had
never attempted to apply for a license, and formalized his forfeiture in 1998.

Valentin petitioned for review, and the FCC succinctly affirmed its original decision: “Rev. Valentin has not filed for (let alone received) a Commission license. He intentionally broke the law.”

Another Spanishspeaking
pirate in Detroit got similar treatment: in October, 1997 field agents found the location
of unlicensed FM broadcasts on 106.3 MHz and spoke with with Edwin Raices, who told them
the station was officially chartered with the state as a partnership and provided the
documentation to prove it. The FCC replied that a state corporate charter was no substitute for a
broadcast license and threatened a $5,000 fine in November. Raices responded claiming he
didn’t mean to break any rules, had not caused any interference, and decreased transmitter
power. The FCC disagreed on the claim of willfulness, termed the interference issue “irrelevant,”
and followed through on its forfeiture threat in 1998.

When agents attempted to inspect Mark H. Fulling’s unlicensed FM station in Garden
City, Kansas on August 26, 1998, Fulling did not allow it. The Kansas City field office followed
up with an $8,000 Notice of Apparent Liability one week later. Fulling acknowledged the
violation but disputed the penalty, citing the high quality of his transmitting equipment and lack
of demonstrable interference. The FCC was more than happy to make the forfeiture official in
April, 1999, interpreting Fulling’s response as little more than an admission of guilt.53 Fulling’s
informal appeal of the forfeiture charged the FCC with procedural violations in the
administration of his case. Things finally sorted out in March, 2000 when the FCC affirmed the
forfeiture. It based its decision on Fulling’s prior admission of guilt and also noted that it was
going out of its way to take the case this far, as Fulling’s response to the forfeiture had not been
properly filed as a petition for reconsideration.

An interesting subset of administrative challenges to the FCC has occurred in the last
decade involving “constitutionalists” or “state’s rights” advocates who come from a long history
of questioning the jurisdiction and authority of federal government agencies. Unfortunately, their
spirit of defiance does nothing for the futility of their gestures. Alan Leonard Brockway is a case
in point: fined $17,000 in 2001 for “willful and repeated” violations of the Communications
Act,55 he was hit with a larger penalty in part for refusing to allow agents to inspect his station.
Brockway’s initial petition for reconsideration was denied.56 In a second petition for review he
laid out an argument which the FCC, in another denial, called “nothing relevant to the issues in
this proceeding,” but which presumably had something to do with a challenge to the scope of
judicial and quasi-judicial power assumed by government agencies, as the Commission cites
Marbury v. Madison57 and Heiner v. Donnan58 as two of Brockway’s legal references.59
Richard I. Rowland’s challenge did not fare any better: issued a Notice of Apparent
Liability in October, 2000 for unlicensed FM broadcasts in Longwood, Florida, Rowland
responded with a demand for tax documents from the FCC as proof that it had the power to issue
fines against him. He also sent the Tampa field office “copies of state constitutions, the Magna
Carta, the Mayflower Compact, and his birth certificate.” The FCC was wholly unmoved and
issued a forfeiture notice in February, 2001.60 It finally secured a civil judgment to collect the
fine from a federal judge in Orlando in 2003.61

In Leander, Texas, Keith Perry broadcast satellite-fed programming via FM transmitter
from his home beginning in February, 1997. A complaint from the Texas Association of
Broadcasters got the FCC involved and a field inspection took place that March. The visit was
followed up by a Notice of Violation mailed to Perry. He replied with a refusal to shut down and
several counterclaims, such as,

[T]he FCC has no power to regulate FM broadcast stations operating with transmitter
power of less than 100 watts; Agents...trespassed on his property and illegally parked
their vehicle in front of his home; the FCC has no authority to inspect unlicensed stations;
Agent...had no authority to operate the transmitter while conducting his tests; the agents
slandered Keith Perry to the Leander Police Department; and insufficient postage was
placed on the warning letter.

After a trip back to Leander to confirm the continuing violation, the FCC initiated cease and
desist and forfeiture proceedings against Perry on April 6, 1998. He responded on May 1 with a
letter, later rejected by Administrative Law Judge Arthur I. Steinberg as too informal to
constitute a proper reply, but which stated a willingness to negotiate with the FCC provided
hearings be held in Austin.63 Perry also continued to challenge the FCC’s jurisdictional authority,
25
resting his case on a form letter he received as the result of a separate inquiry in April which
“purport[ed] to disclaim federal jurisdiction over all intrastate radio communications.”64 The FCC
declared these arguments untimely, defective, and moot, and moved ahead with a cease and
desist order and $11,000 fine in December, 1998.

It might even be said that such “constitutionalist” resistance brings down harsher
punishment. While criminal convictions and actual prison sentences for the crime of unlicensed
broadcasting are very rare, a significant proportion of them have involved such advocates. For
example, Mark A. Rabenold was first contacted by the FCC in August, 1997 for broadcasting on
105.1 MHz in Oroville, WA without a license. He refused to let agents inspect his station. The
FCC issued an Order to Show Cause and Notice of Opportunity for Hearing, the initial step
toward a cease and desist order, in 1998.65 In the proceedings which followed the FCC reports
Rabenold responded to its initial notice with a “COMMERCIAL AFFADAVIT,” in which he
said, in part: “Your papers were received, but not accepted, and are refused for cause without
dishonor and without recourse to me and returned herewith because they are irregular,
unauthorized, incomplete, and void process."66 Rabenold ignored the order and continued
broadcasts of “North Valley Radio” with five watts of power. A short time later he added a
second transmitter to service another town nearby. Armed with a cease-and-desist order, the FCC
pressed for contempt of court charges. In February, 2001, Rabenold was arrested and thrown in
the county jail; at a federal district court hearing he acted as his own attorney and disputed the
authority of both the FCC and the presiding judge, who sentenced him to six months unless he
agreed to turn off his radio stations.67 Rabenold languished behind bars for two months before
capitulating.

The weakness of the FCC’s field presence directly affects the administrative side of its
enforcement process. A good example of external pressures driving timely and effective
resolution of unlicensed broadcasting cases involves Lewis Arnold of Chewelah, Washington.
Armed with a one-watt transmitter on 95.3 MHz, Arnold did not consider himself a threat to
commercial stations in the area. Eric Carpenter, general manager of 1,000-watt KCVL-AM and
3,000-watt KCRK-FM in Colville, WA - some 20 miles distant from Chewelah - felt differently.
In a June 26, 1997 complaint to the Seattle, WA FCC field office, “Carpenter alleged that the
unauthorized station caused economic harm and interference to the reception of his station
[KCRK].”69 He followed up with a phone call a week and a half later that identified Arnold as the
station operator; the FCC shot off a warning letter. Field agents from Seattle then visited the
station in August. Arnold voluntarily allowed inspection and the agents repeated the prohibition
on broadcasting without a license. Three days after that visit, Carpenter wrote the FCC to let
them know Arnold was back on the air. He called Seattle on September 9 to follow up. Agents
finally traveled back to Chewelah in March, 1998 and confirmed Carpenter's complaints. The
FCC finally closed out the case in December, 1998 with a cease and desist order and $11,000
fine, which Arnold never bothered to challenge.70 Persistence pays off - in this case at the price of
a year and a half’s worth of patience.

Further illustration of the variability of the FCC’s enforcement mien can be found in the
case of Frank Bartholomew, who may be the only unlicensed broadcaster to be punished by the
FCC, but not for the primary act. Bartholomew was visited twice in October, 1997 by FCC
agents who monitored his low power FM station’s signal over a 288-square mile area in and
around Fredricksburg, Pennsylvania. On both occasions Bartholomew refused to identify himself
nor did he allow agents to inspect his transmitter. Bartholomew received a $17,000 Notice of
Apparent Liability in December. His response claimed that his transmissions were within legal
power limits. In May, 1998, the FCC rejected Bartholomew’s response and formalized his fine -
but only for $2,000. The forfeiture was meant to stress the seriousness of refusing the agents’
knock: “The Commission's authority to inspect radio facilities is a cornerstone of the FCC's
ability to ensure compliance with the Communications Act and FCC rules...Inspection is critical
to ensure that serious interference concerns, especially regarding safety of life matters, can be
resolved quickly.”71 The fact that in Bartholomew’s case these concerns did not exist (the FCC
produced no evidence suggesting interference was an issue) does not seem to matter. In reducing
the fine to $2,000, the FCC effectively punished Bartholomew not for broadcasting without a
license, but for refusing agents entry to inspect his station; that violation was, in the eyes of
Compliance Division Chief Pamela Harrison, the single one “we cannot ignore.

Finally, enforcement actions involving two stations in Naples, Florida highlight how the
FCC’s case-by-case approach to unlicensed broadcasting can undermine efficient policing of the
airwaves. They both involve Spanish-language broadcasters: the first was “Tropical Estereo
107.5FM,” which received a visit from FCC field agents on April 19, 2002. Its operator, Octavio
Sarmiento, told them he’d submitted an application for a low power FM station license just two
weeks earlier, although it was later discovered that he’d used the wrong form. The agents told
him unlicensed operation was illegal and advised him to shut down. They came back the
following day and heard the station again, taped its signal, and issued a Notice of Apparent
Liability for $10,000 in June. Sarmiento’s response demanded a bill of particulars from the FCC
about the evidence it had surrounding his continued broadcasts, supplemented with affidavits
from five station employees and 25 listeners who all claimed the station hadn’t been on the air
April 20. In closing, Sarmiento asked for a reduction in the size of the proposed forfeiture,
claiming to have been duped by a scam artist named Disonio Lombardi - from whom he was
“leasing” the station - into believing it was legal to operate.73 The FCC formalized Sarmiento’s
forfeiture in December, 2002, citing the tapes made by field agents as irrefutable evidence that
willful and repeated violation had occurred. It also picked apart his scam defense, noting his
erroneously-filed LPFM application belied his status as an ignorant victim.

There is, however, more to the scam scenario than meets the eye. The reason why the
FCC came back to Naples on April 20, 2002 - and caught Octavio Sarmiento, Jr. in the act again
- was because of complaints about broadcasts involving another pirate station, “Mission Posible
105.1 MHz.” This one was traced to the Tree of Life Church, where Richard Muñoz identified
himself to agents as the station’s operator. Muñoz initially shut the station down in the presence
of the FCC, only to start up again 10 days later. The following month, agents came back to
Naples and found “Mision Posible” back on the air. A Notice of Apparent Liability to Muñoz
followed in June.75 Muñoz’s response also painted him the victim of fraud: he “agreed to
purchase 50% of the radio station” from one Daniel Morisma in late 2001. Muñoz also claimed
that Morisma advised him not to worry about the FCC’s visits.76 The FCC followed through with
a monetary forfeiture, calling the loss of Muñoz’s $15,000 investment in the station
“unfortunate” but no excuse for breaking the law.77 After pleading poverty, the FCC reduced his
fine to $2,000.

What makes this case particularly interesting is that Octavio Sarmiento, in his own
defense, also mentioned dealings with Daniel Morisma. Sarmiento initially leased air time from
Morisma for “Tropical Estereo” on 105.1 MHz in December of 2001. Sarmiento further stated
that after he found out out Morisma had no license for the station he terminated the lease
agreement.79 Richard Muñoz appears to have been Morisma’s next victim. There is no record of
the FCC making the connection between these cases and investigating Morisma himself, who
was clearly the enabler for the unlicensed broadcasts in both (and probably more) instances. Nor
is there any record of investigation into Disonio Lombardi, who snared Octavio Sarmiento, Jr. a
second time with a very similar scam for “Tropical Estereo 107.5,” and who also probably had
other victims.

Although a quasi-regular administrative caseload involving unlicensed broadcasting is a
relatively recent development for the FCC, the agency’s had to deal with such cases throughout
its entire history. It has developed its ability to be so dismissive with administrative challenges
from unlicensed broadcasters thanks to the creative latitude of FCC field agents and federal
judges which have upheld their authority in the face of most challenges. Yet the FCC’s ability to
exercise its authority is fairly weak, due to the lack of time and resources available to enforce the
license requirement. The discrepancy between the administrative and judicial support for FCC
licensing authority and the agency’s ability to effectively exercise it creates a window of
opportunity that, despite evolutions in the law and political conditions, has sustained citizen
challenges to government licensing in the form of unlicensed broadcasting. These acts have
carved out spaces of autonomy throughout U.S. radio history where “the public” has acted on
sentiments of spectrum ownership.

29
Notes to Chapter 2
1. 47 U.S.C. § 510 (2000).
2. 47 U.S.C. § 501 (2000) sets the maximum criminal penalty for violations of the
Communications Act at one year of imprisonment.
3. 47 U.S.C. § 401(a) (2000).
4. 47 U.S.C. § 402(b) (2000).
5. 47 U.S.C. § 402(b)(7) (2000). This twist to the path for judicial challenges was added
as an amendment to the Communications Act in 1959. See Robert Sears McMahon, Federal
Regulation of the Radio and Television Broadcast Industry in the United States, 1927-1959 (New
York: Arno Press, 1979), p. 227.
6. 47 U.S.C. § 402(b)(1) (2000).
7. John R. Bittner, Broadcast Law and Regulation (Englewood Cliffs, NJ: Prentice-Hall,
Inc., 1982), p. 44.
8. The FCC’s field agents themselves have no police powers, and therefore cannot
execute warrants without the assistance of a peace officer. Any police agency will serve in a
pinch, provided the jurisdictional command agrees to release officers to the task of backing up
the FCC. For its part, the agency’s Enforcement Bureau claims, falsely, that its agents can ignore
the Fourth Amendment: see Q #3, FCC Enforcement Bureau, Inspection Fact Sheet, July 5, 2001
(August 9, 2003), http://www.fcc.gov/eb/inspect.html. The FCC has begun sending its field
agents for rudimentary police training at the Federal Law Enforcement Training Center in New
Mexico; see January 2003 Presentation by Bureau Chief David Solomon, January 15, 2003
(August 9, 2003), http://www.fcc.gov/eb/reports/Jan2003.html. In 1993 the Commission also
endowed its field agents with authority to issue administrative subpoenas in the course of
investigations, citing cases of unlicensed broadcasting as an impetus, but that authority is rarely
invoked. See In the Matter of Authority to Issue Subpoenas, 8 FCC Rcd 8763 (Fld. Op. Bur.
1993).
30
9. The FCC’s power to issue forfeitures derives from 47 U.S.C. § 503 (2000), which sets
the maximum fines for violations of the Communications Act. This enforcement tool was
endowed by an act of Congress in 1960 and expanded in 1978. For most of its history the agency
determined forfeiture amounts on a case-by-case basis but discovered this process was timeconsuming
and erratic. In 1991 the FCC issued its own directive refining the forfeiture process; it
established base fine amounts for violations to be adjusted upward or downward depending on
the severity and egregiousness of the specific case at hand. See Standards for Assessing
Forfeitures, 6 FCC Rcd 4695 (1991); pet. recon. denied, 7 FCC Rcd 5339 (1992). After further
tweaking in 1993 (8 FCC Rcd 6215 (1993)), the FCC’s forfeiture policy was vacated on
challenge by the D.C. Circuit Court of Appeals, primarily for failing to follow the proper
administrative procedures for major rule changes, like allowing adequate opportunity for public
comment: see United States Telephone Association v. FCC, 28 F.3d 1232 (D.C. Cir. 1994). The
policy was then rewritten in 1997: see In the Matter of The Commission's Forfeiture Policy
Statement and Amendment of Section 1.80 of the Rules to Incorporate the Forfeiture Guidelines,
12 FCC Rcd 17087 (1997); pet. recon. denied, 15 FCC Rcd 303 (1999).
47 U.S.C. § 503(b)(2)(D) requires the FCC “to take into account the nature, circumstances,
extent, and gravity of the violation, and with respect to the violator, the degree of culpability, any
history of prior offenses, ability to pay, and other such matters as justice may require.”
10. Pursuant to 47 U.S.C. § 504(a) (2000).
11. Steven P. Phipps, “Unlicensed Broadcasting in the US: The Official Policy of the
FCC,” Journal of Broadcasting & Electronic Media 2 (Spring 1990): 138.
12. Ted Coopman, “FCC Enforcement Difficulties with Unlicensed Micro Radio,”
Journal of Broadcasting & Electronic Media 43, no. 4 (Fall 1999): 593.
13. This does not necessarily end an unlicensed broadcaster’s participation in pirate radio.
There have been two confirmed cases where persons silenced by an injunction returned to the
air: the first was Stephen Dunifer, who appeared on a microradio station set up in Seattle’s
Independent Media Center during the WTO protests of 1999, while his injunction was on appeal:
see Kevin Keyser, Free Radio: A Video Documentary (Independent release, 2000); video clip
available online at http://www.diymedia.net/video/real/wto.ram. The second was “Reckless,”
enjoined in 2000 as a broadcaster with Free Radio Austin. She participated in the “mosquito
fleet” of microbroadcasters that protested the National Association of Broadcasters’ annual radio
convention in 2002. See John Anderson, “Audio from the Mosquito Fleet,” DIYmedia.net,
September 29, 2002, http://www.diymedia.net/audio/mfaudio.htm. It should be noted that
whether Dunifer or Reckless actually deployed and/or operated transmitters at these events is
unknown.
14. See Appendix C, “Program Staffing Allocations,” FCC Fiscal Year 2004 Budget
Estimates, February, 2003, p. 75 (August 10, 2003),
http://www.fcc.gov/Reports/fcc2004budget_appendix_c.pdf. This number is unchanged from FY
2003.
15. Coopman, “FCC Enforcement Difficulties,” p. 591.
16. FCC Enforcement Bureau, Organizational Structure, July 31, 2003 (August 10,
2003), http://www.fcc.gov/eb/eb.pdf.
31
17. Of course, the actual geographic distribution of FCC field agents is not uniform: they
tend to congregate around the most urbanized areas of the U.S., where broadcast activity (and
other activity that falls within the agency’s purview) is highest.
18. Coopman, “FCC Enforcement Difficulties,” p. 585.
19. See Ted Coopman, “Conclusions,” Sailing the Spectrum from Pirates to Micro
Broadcasters: A Case Study of Micro Broadcasting in the San Francisco Bay Area, (San Jose,
CA: Unpublished master’s thesis, San Jose State University, 1995), online at Rogue
Communication (August 8, 2003), http://www.roguecom.com/rogueradio/conclusions.html.
20. Ted Coopman, “Hardware Handshake: Listserv forms Backbone of National Free
Radio Network,” American Communication Journal 3, no. 3 (2000) (August 9, 2003),
http://acjournal.org/holdings/vol3/Iss3/articles/ted_coopman.htm.
21. Phipps.
22. See Coopman, “Literature Review,” Sailing the Spectrum (August 8, 2003),
http://www.roguecom.com/rogueradio/litreview.html.
23. Andrew Yoder, Pirate Radio: The Incredible Saga of America’s Underground, Illegal
Broadcasters (Solana Beach, California: HighText Publications, 1996), p. 52-56. Yoder goes on
to note that by 1988-89, there were more shortwave pirates on the air than ever before.
24. Coopman, “FCC Enforcement Difficulties,” p. 583.
25. Anderson, “Enforcement Action Database,” DIYmedia.net,
http://www.diymedia.net/fccwatch/ead.htm.
26. Jesse Walker, Rebels on the Air: An Alternative History of Radio in America (New
York: New York University Press, 2001), p. 247-249.
27. General Accounting Office, The Role of Field Operations in the Federal
Communications Commission’s Regulatory Structure (Washington, D.C.: Government Printing
Office, August 18, 1978).
28. Id., p. 12-13.
29. Id., p. 17.
30. Id., p. 23.
31. Coopman, “FCC Enforcement Difficulties,” p. 592-593.
32. FCC Inspector General, Report on Audit of the Federal Communications Commission
(FCC) Civil Monetary Penalty Program, August 1, 2000 (December 1, 2003),
http://www.fcc.gov/Bureaus/Inspector_General/Reports/civilmonetary.pdf.
33. Barry Cole and Mal Oettinger, Reluctant Regulators: The FCC and the Broadcast
Audience (Reading, MA: Addison-Wesley Publishing Company, 1978), p. 100.
32
34. FCC Inspector General, FY 1999 Field Inspection Program – Summary Inspection
Report, January 21, 2000 (August 19, 2003),
http://www.fcc.gov/Bureaus/Inspector_General/Reports/fy99fieldinspection.pdf.
35. Id., p. 2.
36. FCC Enforcement Bureau, Year Two Progress Report, January 17, 2002 (February 5,
2004), http://www.fcc.gov/eb/reports/progpres.pdf, p. 3.
37. William Kennard, “Remarks to NAB Radio Convention, Seattle, Washington,
October 16, 1998” (December 14, 2003), http://www.fcc.gov/Speeches/Kennard/spwek832.txt.
38. FCC Enforcement Bureau, Year One Progress Report, November 2, 2001 (December
14, 2003), http://www.fcc.gov/eb/annual/yearone.html.
39. Anderson, “FCC Enforcement Bureau: Year Three Progress Report,” DIYmedia.net,
October 10, 2002, http://www.diymedia.net/audio/mp3fcceb02.htm.
40. Pursuant to 47 C.F.R. 1.106 (2002).
41. Pursuant to 47 C.F.R. 1.3 (2002).
42. Hippolito Cuevas, 13 FCC Rcd 25289 (Mass Med. Bur. 1998).
43. Walter A. Socolow, The Law of Radio Broadcasting (New York: Baker, Voorhis &
Co., 1939), p. 171.
44. See Committee on Government Operations, The FCC Public Reference Rooms Are a
Mess, H.R. Rep. No. 100-749 (1988).
45. In the Matter of Thomas A. Brothers, Berkley, Michigan, 17 FCC Rcd 10550 (Enf.
Bur. 2002).
46. In the Matter of Thomas A. Brothers, Berkley, Michigan, 17 FCC Rcd 26125 (Enf.
Bur. 2002).
47. Jeffrey Alan Petrey, 16 FCC Rcd. 22088 (Enf. Bur. 2001).
48. Rev. Dr. Philius Nicholas, 17 FCC Rcd 10530 (Enf. Bur. 2002).
49. Rev. Dr. Philius Nicholas, 17 FCC Rcd 23779 (Enf. Bur. 2002).
50. Edwin Valentin d/b/a Musical Radio, 13 FCC Rcd 5099 (Compl. & Inf. Bur. 1998).
51. Edwin Valentin d/b/a Musical Radio, 15 FCC Rcd 5255 (Enf. Bur. 2000) at 5256.
52. Edwin Raices Andres Rivera Regis d/b/a R & R Communications, 13 FCC Rcd 4656
(Comp. Inf. Bur. 1998); pet. recon. denied, 13 FCC Rcd 24210 (Comp. Inf. Bur. 1998).
53. Mark H. Fulling, Garden City, Kansas, 15 FCC Rcd 6020 (Enf. Bur. 2000).
33
54. Id. at 6021.
55. In the Matter of Alan-Leonard Brockway, Kalispell, Montana, 16 FCC Rcd 10937
(Enf. Bur. 2001).
56. In the Matter of Alan-Leonard Brockway, Kalispell, Montana, 16 FCC Rcd 13191
(Enf. Bur. 2001).
57. 5 U.S. 137 (1803).
58. 285 U.S. 312 (1932).
59. In the Matter of Alan-Leonard Brockway, Kalispell, Montana, 17 FCC Rcd 433 (Enf.
Bur. 2002).
60. In the Matter of Richard I. Rowland, Longwood, Florida, 16 FCC Rcd 2992 (Enf.
Bur. 2001).
61. See “Federal District Court Orders Civil Judgment Against Richard I. Rowland for
Unlicensed Radio Operation,” FCC news release #236551, issued July 15, 2003.
62. Keith Perry, FCC 98-062 (Comp. Inf. Bur. 1998).
63. Keith Perry, 14 FCC Rcd 1263 (Comp. Inf. Bur. 1998) at 1264.
64. Id.; The FCC said in its defense “that his question was misunderstood and answered
inaccurately.”
65. Mark A. Rabenold, Oroville, Washington, FCC-98-63 (Comp. Inf. Bur. 1998).
66. Mark A. Rabenold, 14 FCC Rcd 1261 (Comp. Inf. Bur. 1998).
67. John Craig, “Unlicensed radio stations' owner sent back to jail; six-month sentence
will be lifted when illegal stations taken off air,” Spokane Spokesman-Review, March 8, 2001, p.
B4.
68. Ron C. Judd, “A Tiny Town Shouts ‘Whoa!’ to Patriot Act,” Seattle Times, August
10, 2003, Fourth Edition, p. A1.
69. Lewis B. Arnold, 13 FCC Rcd 10618 (Comp. Inf. Bur. 1998).
70. Lewis B. Arnold, FCC-98-326 (Comp. Inf. Bur. 1998).
71. Frank J. Bartholomew, 13 FCC Rcd 13160 (Comp. Inf. Bur. 1998) at 13161.
72. Id.
73. Octavio Sarmiento, Jr., Naples, FL, 17 FCC Rcd 25277 (Enf. Bur. 2002).
74. Id. at 25281.
34
75. Richard Muñoz, 17 FCC Rcd 21132 (Enf. Bur. 2002).
76. Id. at 21133.
77. Id.
78. Richard Muñoz, 18 FCC Rcd. 6333 (Enf. Bur. 2003).
79. Octavio Sarmiento, Jr., supra not

1 comment:

Anonymous said...

Great article Monk. I am from Garden city(Irate pirate) and let me tell you a lot of bullshit was involved with this case. 1 st off I didnt admit SHIT! All procedings in the case had been filed correctly by My lawyers. See what happened I caught them red handed DFing my station I chased the agent down the street not only is he a liar, but a pussy as well. He returned the next day with city cops. The main point i want to get across is you can beat these liars at this. Its called due process I never paid a dime nor will I . You have to rember the FCC has never been inacted by congress. Most of the time the DOJ does not think of this as crime as long as you are not causing harmful interference. The real reason they got so mad about this case is we changed frequiences moved the transmiter and hired a pi to watch the FCC.